PLJ 2024 Cr.C. (Note) 43
[Lahore High Court, Multan Bench]
Present: Muahmmad Tariq Nadeem, J.
Mst. TEHZEEB ZAHRA--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 7704-B of 2023, decided on 21.11.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 302 & 363--No direct or indirect evidence--Last seen evidence--Circumstantial evidence--Rule of consistency--Post arrest bail--grant of--Petitioner is not nominated in crime report in any capacity as the culprit of offence and even there is no mentioning of any direct or indirect evidence qua the kidnapping of ill-fated child--The complainant nominated the petitioner and her brother while laying the dead body of the deceased near the outer wall of haveli of complainant’s brother--Story qua the factum of last seen should have been mentioned straightaway in crime report--The prosecution is relying upon circumstantial evidence in the shape of last seen as well as laying the dead body of deceased and there is no direct evidence to connect the petitioner with the murder of deceased--A weak type of evidence, will be best adjudged by the trial court--The case against the petitioner needs further inquiry--Co-accused who according to the prosecution’s own showing, had identical role in the alleged occurrence, has already been granted post-arrest bail by the trial court--Complainant have challenged the bail granting order and the same still holds the field--Petitioner is behind the bars since her arrest and is no more required for further investigation--This petition is accepted and the petitioner is allowed post-arrest bail.
[Para 5, 6, 7 & 8] A, B, C, D, E, F, G & H
2021 SCMR 2011; PLD 2021 SC 738; 2012 SCMR 387; 2017 SCMR 61; 2008 SCMR 173; 2008 SCMR 249; 2022 SCMR 1834 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Heinousness of offence--Mere heinousness of offence is no ground for refusal of bail to an accused if otherwise she is entitled for the bail. [Para 7] G
2019 SCMR 1914 ref.
Khawaja Qaisar Butt, Advocate for Petitioner.
Mr. Adnan Latif Sheikh, Deputy Prosecutor General with Latif Inspector.
Malik Muhammad Siddique Kamboh, Advocate for Complainant.
Date of hearing: 21.11.2023.
Order
By virtue of instant petition filed under Section 497, Cr.P.C. the petitioner has sought post-arrest bail in case FIR No. 275 dated 19.04.2023, in respect of offences under Sections 363, 302, PPC, registered at Police Station Saddar Shujabad, District Multan.
2. Precise story of incident narrated by Imtiaz Hussain complainant is that on 19.04.2023 at about 06:00 p.m. his son Hadi Abbas, aged about 5 years, went out of the house to play but did not come back and it was apprehended that he had been abducted by unknown accused. Upon recovery of dead body of Hadi Abbas, the complainant nominated the petitioner and her co-accused through supplementary statement.
3. I have heard the learned counsel for the petitioner as well as learned Law Officer assisted by learned counsel for the complainant meticulously and perused the record minutely with their able assistance.
4. No doubt only tentative assessment is to be made in post-arrest bail and deeper appreciation or evaluation of evidence at this stage is neither desirable nor permissible but benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. Reliance is placed upon the case titled as “Resham Khan and another v. The State” (2021 SCMR 2011) wherein the Hon’ble Supreme Court of Pakistan has held as under:
“……..The insight and astuteness of further juiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of the accused in the crime. It is well settled that object of trial is to make an accused to face the trial and not to punish an under-trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not…
Similar principle was laid down in the case-law reported as “Muhammad Sarfraz Ansari v. The State and others” (PLD 2021 SC 738).
5. It is discernible from the record that the petitioner is not nominated in crime report in any capacity as the culprit of offence and even there is no mentioning of any direct or indirect evidence qua the kidnapping of ill-fated child. As per narration of crime report, complainant’s son Hadi Abbas, aged about 5 years, went missing on the evening of 19.04.2023 and on the next evening upon recovery of dead body of Hadi Abbas (deceased), the complainant nominated the petitioner and her brother Danish Raza with the assertions that complainant’s brother Fida Hussain and cousin Sabir Hussain had seen them while laying the dead body of deceased near the outer wall of haveli of complainant’s brother Nazar Hussain. It is further mentioned in supplementary statement that upon hue and cry, Imtiaz Hussain, Nazar Hussain, Ijaz Hussain, Shahbaz Hussain and Qurban Haider along with other inhabitants of vicinity also gathered there and in their presence, Shahbaz Hussain and Qurban Haider disclosed that on 19.04.2023 at about 06:30 p.m. while they were going to Masjid to offer prayer, they had lastly seen Hadi Abbas (deceased) while he went to the house of petitioner and after offering prayer, when they came to know about the abduction of Hadi Abbas (deceased) they had also inquired from the petitioner and her brother. If such was the state of affairs, then the story qua the factum of last seen should have been mentioned straightaway in crime report. Even otherwise, the prosecution is relying upon circumstantial evidence in the shape of last seen as well as laying the dead body of deceased and there is no direct evidence to connect the petitioner with the murder of deceased, particularly to prima facie establish that it was the petitioner who had done away with the deceased, therefore, evidentiary value and worth of circumstantial evidence, which is even otherwise a weak type of evidence, will be best adjudged by the learned trial Court at an appropriate stage of trial. In the peculiar facts and circumstances of the case, I am satisfied that the case against the petitioner needs further inquiry as contemplated in sub-section (2) of Section 497 Cr.P.C. Reliance is placed on the cases of “Muhammad Waseem v. The State and others” (2012 SCMR 387) and “Faiz Jalani alias Imran Mama v. The State and others” (2017 SCMR 61).
6. Apart from the above, co-accused Danish Raza, who, according to the prosecution’s own showing, had identical role in the alleged occurrence, has already been granted post-arrest bail by the learned trial Court vide order dated 13.06.2023. Learned Law Officer as well as learned counsel for the complainant frankly conceded that neither State nor the complainant have challenged the bail granting order and the same still holds the field, therefore, the petitioner is entitled for the concession of bail on the basis of rule of parity. Reliance is placed on the cases titled as “Muhammad Daud and another v. The State and another” (2008 SCMR 173), “Muhammad Azam v. The State” (2008 SCMR 249) and “Muhammad Niaz v. The State and others” (2022 SCMR 1834).
7. So far as the contention of learned counsel for the complainant that the petitioner is involved in a heinous crime and for the reason she is not entitled for concession of bail is concerned, it is well settled by now that mere heinousness of offence is no ground for refusal of bail to an accused if otherwise she is entitled for the bail. “Hasnain Mustafa v. The State” (2019 SCMR 1914).
8. The petitioner is behind the bars since her arrest and is no more required for further investigation. No useful purpose would be served by keeping the petitioner behind the bars.
9. For the above reasons, this petition is accepted and the petitioner is allowed post-arrest bail (in instant FIR) subject to her furnishing bail bonds in the sum of Rs. 5,00,000/- with two sureties each in the like amount to the satisfaction of learned trial Court.
10. It is, however, clarified that the observations made hereinabove are tentative in nature, and strictly confined to the disposal of this bail petition.
(K.Q.B.) Petition accepted
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